Case 2:16-cv-02572-BRO-AFM Document 19 Filed 07/25/16 Page 1 of 12 Page ID #:150

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KAMALA D. HARRIS
Attorney General of California
MARK R. BECKINGTON
Supervising Deputy Attorney General
JOHN D. ECHEVERRIA
Deputy Attorney General
State Bar No. 268843
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: (213) 897-4902
Fax: (213) 897-5775
E-mail: John.Echeverria@doj.ca.gov
Attorneys for Defendant Kamala D. Harris,
California Attorney General

IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION (LOS ANGELES)

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ULISES GARCIA; JORDAN

GALLINGER; BRIAN HILL;
BROOKE HILL; CRAIG DeLUZ;
SCOTT DIPMAN; ALBERT
DUNCAN; TRACEY GRAHAM;
LISA JANG; DENNIS SERBU;
MICHAEL VEREDAS; FIREARMS
POLICY FOUNDATION;
FIREARMS POLICY COALITION;
MADISON SOCIETY
FOUNDATION; and THE
CALGUNS FOUNDATION,

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CALIFORNIA ATTORNEY
GENERAL KAMALA D.
HARRISS REPLY IN FURTHER
SUPPORT OF MOTION TO
DISMISS COMPLAINT

August 8, 2016
1:30 p.m.
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The Honorable Beverly
Reid OConnell
Plaintiffs, Acton Filed: April 14, 2016

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Case No.: 2:16-cv-02572-BRO-AFM

v.
KAMALA D. HARRIS, in her official
capacity as Attorney General of
California,
Defendant.

Date:
Time:
Courtroom:
Judge:

Case 2:16-cv-02572-BRO-AFM Document 19 Filed 07/25/16 Page 2 of 12 Page ID #:151

The Attorney General respectfully submits the following reply in further

support of her motion, pursuant to FRCP 12(b)(6) and 12(b)(1), to dismiss

Plaintiffs Complaint with prejudice (the Motion or Mot. (Dkt. No. 14)).1

INTRODUCTION

In their opposition to the Motion (the Opposition or Oppn), Plaintiffs

concede that rational basis scrutiny applies to their equal protection claim

challenging the Retired Officer Exemption to the Gun-Free School Zone Act, Cal.

Penal Code 626.9(o). (See Oppn at 9:2-15.) The parties disagree, however, on

the proper test under rational basis scrutiny. In her opening papers, the Attorney

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General demonstrated that the Retired Officer Exemption satisfies rational basis

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scrutiny because it is, at a minimum, reasonably related to a legitimate government

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purpose: the safety of retired peace officers. (Mot. at 14:16-18:11.) While

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Plaintiffs acknowledge that allowing retired peace officers to carry concealed

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weapons in school zones may be a rational way for the government to promote their

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safety (Oppn at 11:28-12:1), they insist that the Attorney Generals focus on the

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safety of retired peace officers is too narrow and that [t]he right question is

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whether the classification here is rationally related to achieving the broader purpose

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of the Gun Free School Zone Act. (Id. at 1:3-7.) But that is not, and cannot be,

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the law. In conducting a rational basis review of a statutory exemption, the Court

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must identify any hypothetical rational basis for the exception. Silveira v.

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Lockyer, 312 F.3d 1052, 1090 (9th Cir. 2002), abrogated on other grounds by

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District of Columbia v. Heller, 554 U.S. 570 (2008).

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Nothing in Plaintiffs Opposition undermines the common-sense conclusion

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that the Retired Officer Exemption has a rational basis. Plaintiffs have failed to

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distinguish other cases upholding similar exemptions for retired peace officers from

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Capitalized terms used but not defined herein shall be given the same
meaning ascribed to them in the Motion, which is expressly incorporated herein by
reference.

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firearm restrictions based on the same interest in their personal safety. The only

case that Plaintiffs rely upon to support their claim is the Silveira decision. But that

case concerned an exemption to the California Assault Weapons Control Act (the

AWCA) permitting retired peace officers to obtain personal pleasure military-

style weapons upon retirement, 312 F.3d at 1091, which (unlike the firearms

permitted under the Retired Officer Exemption) could have had no reasonable

connection to any self-defense interest for retired officers. In addition, Plaintiffs

fail to explain how the Individual Plaintiffs are similarly situated to retired peace

officers or how the Organizational Plaintiffs have standing. The Motion should be

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granted, and the Complaint should be dismissed with prejudice.

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ARGUMENT

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I.

THE RETIRED OFFICER EXEMPTION SATISFIES RATIONAL BASIS

SCRUTINY

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A.

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Under the Equal Protection Clause of the Fourteenth Amendment, the general

Plaintiffs Misstate the Standard for Rational Basis Scrutiny

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rule is that legislation is presumed to be valid and will be sustained if the

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classification drawn by the statute is rationally related to a legitimate government

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interest. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985).

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Despite this deferential standard, Plaintiffs insist that the Retired Officer Exemption

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must be connected to one, and only one, government purpose: the purpose of the

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Gun-Free School Zone Act. (See Oppn at 1:3-7.) Plaintiffs are wrong. By its very

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nature, an exemption to a statute may be at odds in some way with the purpose of

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the statute, and yet a court must uphold the exemption under rational basis scrutiny

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if it is reasonably related to any hypothetical rational basis for the exception,

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whether or not that reason is in the legislative record. Silveira, 312 F.3d at 1090.

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For example, in Nordlinger v. Hahn, 505 U.S. 1 (1992), the petitioner

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challenged exemptions to the acquisition-value property tax scheme in Article

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XIIIA of the California Constitution for two special classes of new owners:
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persons aged 55 and older, who exchange principal residences, and children who

acquire property from their parents. Id. at 16. The Court found that both

exemptions rationally further legitimate purposes. Id. at 17. The latter

exemption happened to further the same purpose as Article XIIIA, which was to

promote neighborhood continuity.2 The former exemption, however, was found to

further the distinct purpose of not discouraging older persons . . . from moving to a

residence more suitable to their changing family size or income. Id. This

exemption was upheld under rational basis scrutiny even though it provided an

incentive for older homeowners to leave their communities and, thus, conflicted

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with the purpose of Article XIIIA.

To justify their position, Plaintiffs rely exclusively on the Silveira courts

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initial observation that the retired peace officer exemption in the AWCA was

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wholly contrary to the legislatures stated reasons for enacting restrictions on

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assault weapons. (Oppn at 11:25-26 (quoting Silveira, 312 F.3d at 1090).) But

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the Silveira court made clear that this initial observation cannot end its analysis

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because the court must attempt to identify any hypothetical rational basis for the

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exception, whether or not that reason is in the legislative record, after which the

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court proceeded to examine, and reject, several potential rationales for the

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exemption. Silveira, 312 F.3d at 1090-91. Accordingly, even if the Retired Officer

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Exemption were wholly contrary to a stated purpose of the Gun-Free School

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Compare Nordlinger, 505 U.S. at 17 ([T]he people of California

reasonably could have concluded that the interests of family and neighborhood
continuity and stability are furthered by and warrant an exemption for transfers
between parents and children. (emphasis added)), with id. at 12 (finding that
Article XIIIA rationally furthers the legitimate interest in local neighborhood
preservation, continuity, and stability by discouraging rapid turnover in
ownership of homes and businesses).

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Zone Act (and it is not), the Court must uphold the Retired Officer Exemption if it

is reasonably related to any legitimate government purpose.3

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B.

The Retired Officer Exemption Furthers the Legitimate

Government Purpose of Protecting Retired Peace Officers

As a general matter, retired peace officers may face unique safety concerns

based on their prior service in law enforcement. As the Sacramento County

Sherriffs Association advocated in support of preserving the Retired Officer

Exemption in the 2015 Amendment: Retired peace officers protected and served

the public while earning the enmity of those in society who ran afoul of the law.

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Retired officers carry their weapons as a means of personal protection. Recent

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attacks demonstrate the need for peace officerseven retired peace officersto be

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able to defend themselves if necessary. (Request for Judicial Notice (Dkt. No. 15),

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Ex. A (April 14 Committee Analysis) at 7.)4 Due to retired peace officers unique

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safety concerns, courts have upheld similar exemptions for retired peace officers

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from other firearm restrictions. See Mehl Dismissal Order at 11 ([Retired peace

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In a revealing footnote, the Silveira court observed that, even though the
grandfather clause [in the AWCA] may also appear to be inconsistent with th[e]
legislative intent [of the AWCA], the argument that a rational basis for the
grandfather clause exists is entirely different from, and likely more substantial than,
those put forward to justify the off-duty exception. Silveira, 312 F.3d at 1090 n.57
(emphasis added). This passage confirms that an exemption can satisfy rational
basis scrutiny even if it conflicts with the purpose of the statute.
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Plaintiffs object to the Request for Judicial Notice, relying exclusively on
California state authorities to argue that the Court may not take judicial notice of
certain statements reflected in the committee analyses for SB 707. (See Objection
to Defendants Request for Judicial Notice (Dkt. No. 17) at 1:3-2:6; Oppn at 16
n.10.) The Court may take judicial notice of these statements as part of the
legislative history of SB 707. See Chaker v. Crogan, 428 F.3d 1215, 1223 & n.8
(9th Cir. 2005) (noting that [n]umerous law enforcement agencies throughout the
state supported the enactment of [a statute] and taking judicial notice of the
legislative history of the statute); Rocky Mountain Farmers Union v. Goldstene,
719 F. Supp. 2d 1170, 1186 (E.D. Cal. 2010) (To the extent that the legislative
histories conflict, or represent the statements of individual legislators, this Court
will consider the weight to give to the statements and resolve all doubts in favor of
plaintiffs pursuant to motion to dismiss standards.). At a minimum, the Court may
take judicial notice of the fact that such statements were made because the sources
are not subject to reasonable dispute. See Fed. R. Evid. 201.

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officers] are entitled to carry concealed weapons to protect themselves from the

enemies they have made in performing their duties. While an officers duty to

respond to the publics calls for help stops when he retires, the threat of danger

from enemies he might have made during his service does not.); Nichols v. Brown,

No. CV 11-09916 SJO (SS), 2013 WL 3368922, at *6 (C.D. Cal. July 3, 2013)

([T]he California Legislature could have reasonably believed that certain groups,

such as retired police officers, were in greater need of self-protection and thus

should be allowed to openly carry a firearm. (emphasis added)). The logic of

these well-reasoned decisions applies with equal force here. (Mot. at 15:19-16:2.)

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Plaintiffs try to distinguish these cases by arguing that Mehl arose in the

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context of [a] licensing scheme designed to facilitate access to firearms,

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suggesting that the exemption for retired peace officers in that case was consistent

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with that purpose. (Oppn at 1:18-20.) Plaintiffs make a similar argument with

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respect to the statute in Nichols, claiming that the open carry ban at issue in that

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case was somehow a statutory scheme permitting the open carry of firearms. (Id.

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at 13 n.8 (emphasis added).) Plaintiffs mischaracterize these statutes.

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Notwithstanding any other exemptions or permitting processes in those statutory

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schemes, those statutes were, undeniably, bans on the concealed carrying and the

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open carrying of firearms, respectively. See Cal. Penal Code 12025 (1999)

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(currently Cal. Penal Code 25400) (concealed weapons ban); Cal. Penal Code

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25850 (open carry ban). The exemptions for retired peace officers in those cases

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were exemptions from those prohibitions. See Cal. Penal Code 12027(a) (2008)

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(currently Cal. Penal Code 25450) (exempting retired peace officers from Penal

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Code section 12025); Cal. Penal Code 25900 (exempting retired peace officers

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from Penal Code section 25850). As in those cases, the Retired Officer Exemption

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to the Gun-Free School Zone Act is reasonably related to the legitimate government

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purpose of protecting retired peace officers.

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It does not matter that the exemption in Mehl applied only if [the retired

peace officers] used firearms in the line of duty or that the plaintiffs in Mehl did

not have concealed-carry licenses. (Oppn at 13:4-13.) The Legislature could

have reached the reasonable determination that retired peace officers are at greater

risk due to their prior service in law enforcement, whether or not they were issued

firearms in the course of their service. Whatever safety concerns CCW permit

holders may have (see id. at 14:17-23), they do not necessarily face the same

pervasive threats as retired peace officers, and, given the rational basis for the

Retired Officer Exemption, the fact that the Gun-Free School Zone Act may be

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over- or under-inclusive does not affect the outcome of this case. (Mot. at 16:6-15.)

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Plaintiffs highlight certain categories of retired peace officers to argue that

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the notion of a need to protect against enemies made in the line of duty is silly to

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the point of irrationality as applied to a Fish and Game agent, a State Fair marshal,

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or an IRS agent who spent most of their career outside of California but happened

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to retire here. (Oppn at 15:17-21.) In so doing, Plaintiffs understate the potential

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risk to these officerswho sometimes engage the public in confrontational

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situations and have the power to arrestand seek to substitute their judgment for

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the Legislatures in determining which retired peace officers may reasonably be at

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risk. The Retired Officer Exemption is constitutional, not (as Plaintiffs erroneously

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contend) because a favored class would benefit from the preference (id. at 12:3-

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6), but because the Legislature could have determined that the preference was

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needed to address the unique safety concerns faced by former law enforcement

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officers.

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C.

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Plaintiffs rely solely on the Silveira decision to argue that the Retired Officer

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Exemption fails under rational basis scrutiny. (See Oppn at 10:7-12, 11:15-13:1.)

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That case concerned an exception to the AWCA that allowed retired peace officers

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to receive assault weapons upon retirement. While the Silveira court did not
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The Silveira Decision Is Not Controlling

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expressly address any self-defense interest for retired peace officers, Plaintiffs

stress that the court sought to identify any hypothetical rational basis for the

exemption, suggesting that the court considered and rejected the very justification

proffered in this case. (See id. at 12:19-24.) Even so, it is not surprising that the

court would reject a personal safety interest in that case because making high-

powered, personal pleasure military-style weapons available to retired peace

officers would not have been reasonably connected to the legitimate government

purpose of ensuring their personal safety. See Silveira, 312 F.3d at 1090-91.

Plaintiffs note the truism that possessing more powerful weapons enhances

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ones self-defense (Oppn at 12:24-25), but the relationship between assault

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weapons and self-defense would have been so attenuated as to render the

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distinction arbitrary or irrational. Silveira, 312 F.3d at 1091. In contrast to the

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weapons at issue in Silveira, the firearms permitted under the Retired Officer

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Exemption have a very close connection to the self-defense interests for retired

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peace officers. See Heller, 554 U.S. at 629 ([T]he American people have

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considered the handgun to be the quintessential self-defense weapon.).

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Additionally, while Plaintiffs fixate on the Silveira courts initial observation

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that the exemption in that case was wholly contrary to the legislatures stated

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reasons for enacting restrictions on assault weapons, 312 F.3d at 1090, the Retired

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Officer Exemption is not wholly contrary to any stated purpose of the Gun-

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Free School Zone Act. Unlike the statute in Silveira, the Act has no stated

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legislative purpose or legislative findings. (See Oppn at 3:20-21 (The legislative

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record contains no legislative findings explaining the purposes of the 2015

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amendments).) Moreover, contrary to AWCA, which applied to all assault

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weapons after the date of enactment, the Gun-Free School Zone Act does not

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eliminate the presence of handguns on school grounds.5 The Act contains

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Plaintiffs claim that the AWCA was hardly a comprehensive ban in

light of the statutes grandfather clause for assault weapons purchased prior to
(continued)
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exemptions for individuals who have obtained a restraining order or the prior

written permission of the appropriate school authorities. See Penal Code 626.9(b),

(c)(3), (h), (i).)6

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D.

Plaintiffs Suggestion that the Retired Officer Exemption Was

the Result of Political Lobbying Is Irrelevant

Without citation to legal authority, Plaintiffs devote a significant portion of

their Opposition to their specious claim that the Retired Officer Exemption violates

the Equal Protection Clause because it favor[ed] a politically powerful group.

(Oppn at 16:15-18.) As discussed in the moving papers, this argument is irrelevant

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to the Courts assessment of the Retired Officer Exemption under rational basis

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scrutiny. (Mot. at 15:12-18 (citing Alva v. Lockyer, 220 Fed. Appx 621 (9th Cir.

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2007)).)

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Plaintiffs Opposition also makes new assertions, nowhere alleged in the

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Complaint, that CCW permit holders are politically unpopular and that the 2015

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Amendment was a result of some form of animus towards them. (See Oppn at

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17:15-18:16.) In determining the propriety of a Rule 12(b)(6) dismissal, a court

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may not look beyond the complaint to a plaintiffs . . . memorandum in opposition

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to a defendants motion to dismiss, but the Court may consider new facts raised in

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the Opposition in determining whether to grant leave to amend or to dismiss the

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complaint with or without prejudice. Broam v. Bogan, 320 F.3d 1023, 1026 n.2

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(continued)
enactment. (Oppn at 10 n.6.) Notwithstanding Plaintiffs attempt to minimize the
scope of the AWCA, the Silveira court described the statutes purpose in sweeping
terms. See Silveira, 312 F.3d at 1090 (describing the acts basic purpose of
eliminating the availability of high-powered, military-style weapons (emphasis
added)); id. at 1091 (noting that the purpose of the act was to eliminate the
availability of the [assault] weapons generally (emphasis added)).
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Notwithstanding the title of the Gun-Free School Zone Act, the Legislature
could not have intended for the Act to eliminate guns from school grounds given
the exemptions allowing firearms on school grounds. See United States v.
Nakashima, 160 F. 842, 845 (9th Cir. 1908) (noting that [t]he title of the act . . .
may not be used to extend or restrain any positive provisions found in the body of
the act).

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(9th Cir. 2003) (citation omitted). The Court should ignore these new assertions

because they are conclusory and belied by the fact that CCW permit holders were

afforded an exemption to the Gun-Free School Zone Act so long as they are not on

school grounds. See Penal Code 626.9(c)(5).

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E.

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Plaintiffs Fail to Identify How They Are Similarly Situated to

Retired Peace Officers

Even though CCW permit holders and retired peace officers are both permitted

to possess concealed weapons for the lawful purpose of self-defense (Oppn at

8:8-11), CCW permits do not make the Individual Plaintiffs similarly situated to

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retired peace officers. Retired peace officers face unique safety concerns due to

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their prior work in law enforcement. See Nichols, 2013 WL 3368922, at *6 (noting

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retired peace officers potential greater need of self-protection). Contrary to

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Plaintiffs suggestion that Freeman v. City of Santa Ana, 68 F.3d 1180 (9th Cir.

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1995), does not apply at the pleadings stage (Oppn at 8 n.4), Plaintiffs are required

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to plead sufficient facts to allege that they are similarly situated to retired peace

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officers. See Guerrero v. De Leon, No. EDCV 12-299-PA(SH), 2012 WL

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5574631, at *5 (C.D. Cal. Sept. 24, 2012) (dismissing equal protection claim

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because plaintiff failed to allege sufficient facts to allow the court to know whether

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[other individuals] were similarly situated). Even if Plaintiffs have adequately

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alleged that they are similarly situated to retired peace officers on account of their

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CCW permitsand they have not due to, inter alia, the different county

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requirements for establishing good cause to obtain a CCW permit (see Oppn at

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4:22-5:2)the Court should still dismiss the Complaint because the Retired Officer

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Exemption satisfies rational basis scrutiny. (See Section I.B, supra.)

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II.

THE ORGANIZATIONAL PLAINTIFFS LACK STANDING

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The Organizational Plaintiffs lack standing because Plaintiffs equal protection

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claim under the Fourteenth Amendment does not implicate any Second Amendment

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interests.7 Plaintiffs claim that this litigation is germane to the organizations

purposes, as it challenges the discriminatory treatment suffered by some citizens

(including members of the plaintiffs organizations) who seek to exercise their right

to keep and bear arms for self-defense. (Oppn at 18:24-27 (emphasis added).)

But, as discussed in the moving papers, this litigation has nothing to do with the

Second Amendment or any right to keep and bear arms. (See Mot. at 18:24-20:16.)

If anything, in attempting to invalidate the Retired Officer Exemption, Plaintiffs are

seeking to restrict the ability of certain individuals to possess firearms on school

grounds. As demonstrated by the authorities cited in the moving papersand

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conspicuously ignored by Plaintiffsthe general equal protection interest asserted

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in this litigation is not germane to the alleged purposes of the Organizational

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Plaintiffs. (Id. at 18:24-19:18.) The only case cited by Plaintiffs in support of their

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argument is Silvester v. Harris, 41 F. Supp. 3d 927 (E.D. Cal. 2014). (Oppn at

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18:27-19:1.) That case, however, supports the conclusion that the Organizational

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Plaintiffs lack standing because, unlike the general civil rights interest asserted

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here, the organizational plaintiffs in that case were asserting a Second Amendment

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interest in attempting to invalidate the 10-day waiting period for purchasing

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firearms. Id. at 942. The Organizational Plaintiffs lack standing and, at a

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minimum, their claims must be dismissed.

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CONCLUSION
For the reasons set forth above and in her opening papers, the Attorney

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General respectfully urges this Court to grant the Motion and dismiss the Complaint

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with prejudice and without leave to amend.

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Plaintiffs do not address the argument raised in the moving papers that the
Organizational Plaintiffs lack direct standing. (See Mot. at 18 n.15.)

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Dated: July 25, 2016

Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
MARK R. BECKINGTON
Supervising Deputy Attorney General

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/s/ John D. Echeverria

JOHN D. ECHEVERRIA
Deputy Attorney General
Attorneys for Defendant Kamala D.
Harris, California Attorney General

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SA2016101989
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